Columbia Global Freedom of Expression seeks to contribute to the development of an integrated and progressive jurisprudence and understanding on freedom of expression and information around the world.  It maintains an extensive database of international case law. This is its newsletter dealing with recent developments  in the field.

Community Highlights and Recent News

● In “Defamation proceedings against Romanian MEP over anti-corruption comments violated Article 10,” Columbia Global Freedom of Expression expert Dirk Voorhoof and Ronan Ó Fathaigh discuss the most recent judgment rendered by the European Court of Human Rights, affirming the application of its strictest test of ‘closest scrutiny’ when assessing interferences with a politician’s freedom of expression on matters of public interest.

● Can hate speech constitute the actus reus for persecution, giving rise to a successful charge of crimes against humanity under the Rome Statute of the International Criminal Court (ICC)? In “Hate Speech as Persecution: Tackling the Gordian Knot,”  and  explain that although the standards are hazy, hate speech not accompanied with calls to violence may rise to the level of persecution, a crime against humanity. The authors see the ICC’s investigation of atrocities in Myanmar as an opportunity to clarify the extant law on this issue in the modern context where Facebook was used as a means of dissemination of hateful content.

● Media Freedom Rapid Response, comprised of press freedom groups, published a report highlighting a worrying decline of media freedom in Europe. One key trend observed is the negative impact of the COVID-19 pandemic on media freedom. According to the findings most threats faced by media workers are physical or psychological in nature, slightly exceeding legal threats.

● In “Media in Turkey: a testing ground of censorship and control,” Sofia Verza, Columbia Global Freedom of Expression legal researcher, and Fazıla Mat assess a new Turkish law that gives the government greater control over social media networks. They explain that the new laws are part of a decade long process aimed at the silencing of independent or opposition opinions and voices. The article is also available in German and Italian.

Decisions this Week

European Court of Human Rights
Baldassi & Others v. France
Decision Date: July 11,2020
The European Court of Human Rights found that there had been a violation of activists’ freedom of expression when French national courts convicted them of incitement to economic discrimination for calling for a boycott of Israeli goods. The eleven applicants participated in two protests in front of a supermarket urging consumers not to purchase goods imported from Israel in support of the Boycott, Divestment, or Sanctions (BDS) movement, which calls on Israel to comply with its obligations under international law in its treatment of Palestinians. The European Court recognized that a boycott is a means of expressing protesting or political opinions on matters of public interest, combined with a call for differential treatment. While discrimination is a form of intolerance justifying a legitimate restriction of freedom of expression under Article 10(2) of the European Convention, the Court clarified that inciting to treat differently is not the same as inciting to discriminate. Further, the applicants were not convicted of making racist or anti-Semitic statements or for having incited hatred or violence. The Court concluded that the French courts did not demonstrate that the conviction of the applicants was necessary in a democratic society to achieve the legitimate aim of protecting others, and therefore found a violation of Article 10 of the European Convention on Human Rights.

United States
Jordahl v. Brnovich
Decision Date: January 6, 2020
The U.S. Court of Appeals for the Ninth Circuit dismissed a claim that an Arizona Bill, which prohibited public entities from contracting with companies engaging in “boycott[s] of Israel,” violated the First Amendment rights of the plaintiff, finding that the claim was now moot. The Plaintiff Mikkel Jordahl was contracted with the State to provide legal services to prisoners, but was refused payment for his services on the grounds that he is a supporter of the Boycott, Divestment, and Sanctions campaigns to protest the Israeli government’s occupation of Palestinian territories. The State of Arizona, an intervenor in the case, appealed the decision of the District Court of Arizona to grant Mr. Jordahl declaratory and injunctive relief against the impugned Act. While the appeal was pending, the State amended portions of the Act such that it no longer applied to Mr. Jordahl and his law firm. The Court reasoned that, as the Act no longer applied, the previous claims were moot and remanded the case to the district court.

German-Palestinian Women’s Association v. Bonn
Decision Date: September 13, 2019
The Administrative Court of Cologne ordered the City of Bonn to allow the German-Palestinian Women’s Association to participate in the annual Culture and Encounter Festival. The City had denied the applicant’s request for participation because of its connection to the Palestinian-led Boycott, Divestment, Sanctions (BDS) movement.  This was based on a May 2019 motion of the Bonn City Council titled “No place for the anti-Semitic BDS movement in Bonn” and a similar motion of the parliament of North-Rhine Westphalia on September 20, 2018. The Court found that the City’s ban violates Article 3 (1) and 5 (1) Basic Law which states, “Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources.” It reasoned that the motions did not constitute legislative acts, and therefore could define the purpose for which the public facility can be used. The Court held that the German-Palestinian Women’s Association was a fitting exhibitor, as it is an intercultural association based in Bonn. The Court observed that it could not assume that all BDS supporters were anti-Semitic and based on the organization’s previous participation in events it could not be assumed that the applicant or any member of the Association would disseminated anti-Semitic opinions, which would not be protected under Article 5 (1) Basic Law.

Jüdisch-Palästinensische Dialoggruppe v. Caritasverband der Erzdiözese München und Freising e.V.
Decision Date: September 23, 2019
The Munich Regional Court held that representatives of the Munich-based dialogue group “Jüdisch-Palästinensische Dialoggruppe” (JPDG) were entitled to rely on a lease agreement they had signed with the respondent local charity Caritasverband der Erzdiözese München und Freising e.V. to use one of the respondent’s facilities for an event.  On September 19, 2019, the respondent terminated the lease without notice, reasoning that the event supported the BDS-movement. This decision was based on a May 2019 motion of the German Bundestag, “Resisting the BDS Movement with Determination – Combating Anti-Semitism,” which inter alia calls not to support any events organized by the BDS movement or by groups pursuing its aims. The complainants argued that their right to freedom of expression under Article 5 Basic Law was infringed and requested an interim injunction. The Munich Regional Court agreed with the complainants finding that political opinions of the supporters of the BDS Movement were protected and that there was no evidence that actions punishable under the criminal code might take place. It further held that a termination without notice can only be justified if the criteria of section 543 (1) of the Civil Code are fulfilled. However, this was not the case because the complainants did not breach any contractual obligations. Moreover, referring to the motion of the Bundestag, which is not a legislative act, does not justify an infringement of their right to freedom of expression under Article 5 Basic Law.

The Frontier of Expression: Russia and Central Asia

On August 10, 2020, a Moscow court imposed a 1.5 million ruble fine (around $20,000) for repeatedly failing to filter content listed on the federal registry of banned materials from its search results. Laws adopted in 2019 require search engine operators to block access to websites on the registry, which is maintained by the federal government. The list includes websites that contain content related to LGBTI relations, suicide, drug use, extremism, and other “undesired” themes. According to the Russian authorities at least a third of the banned websites are still accessible via Google. This is the second time that the tech giant is fined for failing to block certain websites from its search results. Google was fined a smaller sum in September 2019, days after Roskomnadzor accused it and Facebook of interfering in Russian elections by allowing political ads during a mandated “period of silence” before an election when all such ads are prohibited. Coincidentally, the most recent fine came days after Google owned YouTube removed 87 Russian disinformation channels.

On August 9, 2020, the National Security Committee arrested journalist Timur Sultanov per an extradition request from his native Uzbekistan. In the fall of 2017, the Uzbek authorities arrested Mr. Sultanov on charges of disseminating “tendentious defamatory materials” and recruiting individuals who supported a change in the government. All of this was allegedly done by the journalist under a pseudonym. The journalist rejected the charges and complained of torture while in detention. As the result of these claims, new investigators were assigned to his case, but a court still found him guilty of publicly inciting an unconstitutional change in the government. He was sentenced to three years of correctional labor and fined 20% of his salary for the duration of the punishment. Sometime later, Mr. Sultanov relocated to Berlin per an invitation of Reporters Without Borders. In early months of 2020, he traveled to Kyrgyzstan to complete a four-month training course at the American University of Central Asia, but due to COVID-19 could not return to Germany and remained in Kyrgyzstan. On August 10, a Kyrgyz court allowed the National Security Committee to keep the journalist in pre-trial detention until September 8. Mr. Sultanov’s lawyers were forced to sign non-disclosure agreements about the trial and simply explained that the detention was justified under the Minsk Convention, which regulates legal assistance and legal relations, including extradition, among post-Soviet republics.

Post Scriptum

● Americans are losing faith in an objective media. A new Gallup/Knight study explores why. The landmark poll of 20,000 people found that Americans’ hope for an objective media is all but lost. Instead, they see an increasing partisan slant in the news, and a media eager to push an agenda. As a result, the media’s ability to hold leaders accountable is diminished in the public’s eye.

This newsletter is reproduced with the permission of Global Freedom of Expression.  For an archive of previous newsletters, see here.

The Columbia Global Freedom of Expression team is taking a short summer break and the newsletter will return the week of 31 August 2020.